Citation Nr: 21009473 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-35 686A DATE: February 22, 2021 ORDER Entitlement to compensation for the Veteran’s cause of death based on 38 U.S.C. § 1151, for purposes of accrued benefits, is denied. Entitlement to service connection for the Veteran’s cause of death based on 38 U.S.C. § 1310 is denied. FINDINGS OF FACT 1. VA’s medical treatment and care of the Veteran was not rendered with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. 2. During his lifetime, the Veteran was service connected for bilateral hearing loss. 3. The Veteran’s death certificate shows that the immediate causes of death were rectal carcinoma, retro peritoneal bleeding, and cardiac arrest. There are no contributing factors related to the Veteran’s death listed on the death certificate. 4. The cause of the Veteran’s death was not related to either an injury or disease incurred during a period of honorable service or to a service-connected disability. 5. The Veteran’s service-connected bilateral hearing loss was not a principal or contributory cause of death. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for cause of the Veteran’s death due to treatment by VA have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.154, 3.312, 3.361. 2. The criteria for service connection for cause of the Veteran’s death under 38 U.S.C. § 1310 are not met. 38 U.S.C. §§ 1110, 1310, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran, who served on active duty from October 1952 to October 1956, was clearly a credit to the U.S. Air Force and to his family, and his service to his country is greatly appreciated. The Veteran died in June 2014. The appellant is the Veteran’s surviving spouse. The appellant testified at a Board hearing in April 2019 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2019 and June 2020, this appeal was remanded for further development. As it appears that the appellant is contending that she is entitled to benefits for the Veteran’s cause of death pursuant to both 38 U.S.C. § 1151 and 38 U.S.C. § 1310, the Board has separated these contentions under two separate issues, as reflected in this decision. I. Duty to Assist Prior to discussing the substantive issues, the Board will discuss a procedural issue raised by the appellant’s representative. As discussed in more detail below, the appellant’s representative is requesting another remand in order to obtain private medical records from JFK Medical Center (JFK) located in West Palm Beach, Florida. This appeal was remanded in October 2019 and June 2020, in order to attempt to obtain private medical records from JFK. In response to the Board’s October 2019 remand, the RO sent a letter, dated November 2019, requesting the appellant sign an authorization to disclose information to VA so that VA can request treatment records from private medical sources. However, the appellant did not respond or return a signed medical authorization. Thus, the Board remanded again in June 2020, for another attempt to obtain these private medical records. Subsequently, the RO mailed the appellant a developmental letter notifying the appellant that VA wanted to obtain the medial records from JFK and that the appellant would need to sign the enclosed medical authorization in order to obtain these records on her behalf. It was discovered that the appellant did not receive the August 2020 developmental letter that was mailed to her Florida address, as the appellant notified VA she moved to Georgia and provided her new address in Georgia. Thus, the RO re-mailed the developmental letter and authorization to her updated address in Georgia. These letters were not returned. After providing the appellant 30 days to respond, the appellant never returned the signed authorization for these medical records, nor did the appellant submit these medical records for review. As these are private records, they are not within the custody of VA; and therefore, a medical authorization is required in order to attempt to obtain these records. The Board acknowledges the arguments advanced by the appellant’s representative, in which the representative contends that VA did not attempt to obtain the medical records directly from JFK medical center. However, the Board points out that JFK is a private medical center; thus, in order to obtain records that are not within VA custody, a medical authorization is required. Also, the representative argues that because he was not able to contact the appellant with the telephone number on the Veteran’s file, then VA should remand to locate the appellant through Social Security Administration or her banking institution in order to attempt to obtain the medical records from JFK. To the extent the representative is arguing that the appellant did not receive the developmental letter that was sent to the address in Georgia (updated by the appellant herself), the Board points out that while the developmental letter and authorization that were mailed to the appellant’s Florida address were returned, the letters sent to her Georgia address were not returned. Thus, under the presumption of regularity, it is presumed that these letters were mailed to the appellant. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.”). Applying this presumption to the instant case, it is presumed that these letters were mailed to the appellant. In the present case, there is no evidence to the contrary. In fact, even the representative’s contention that he has not been able to reach the appellant via telephone does not contradict the fact that she received the letters at her Georgia address. In other words, the presumption of regularity has not been rebutted by clear evidence that VA failed to discharge its duty. The United States Court of Appeals for Veteran Claim (Court) recently held that while a statement of non-receipt, standing alone, is insufficient to rebut the presumption, when coupled with other evidence, such as substantial evidence that reflects a widespread problem with VA not mailing correspondence, it would rebut the presumption of regularity. See Romero v. Tran, 2021 U.S. App. Vet. Claims LEXIS 78 (Jan. 25, 2021). However, here, the Board notes that because the representative admits he has not spoken to the appellant, he cannot argue that the appellant is in nonreceipt of the letters. Moreover, there is no evidence in this case of any widespread problems with respect to VA’s mail procedures. As such, the Board finds that the presumption of regularity has not been rebutted. Therefore, the Board finds that these letters were mailed to the appellant. Thus, as the record stands, the appellant has not submitted the medical authorization, after reasonable attempts were made to have her do so. While it may be true that the JFK medical records may be relevant, without the assistance of the appellant, VA cannot obtain them. Thus, the Board must adjudicate the issues without the JFK medical records and a remand is not warranted. II. Veteran’s cause of death based on 38 U.S.C. § 1151 Legal Regulations and Principles A veteran who suffers disability or death resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability or death in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability or death. Second, the additional disability or death must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). In order for additional disability or death to be compensable under 38 U.S.C. § 1151, the additional disability or death must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is “directly” or “actually” caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA’s negligence. Viegas, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(2); 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic procedure or course of treatment. 38 C.F.R. § 17.32 (c). Regarding reasonable foreseeability, whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38U.S.C. §5107; 38C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The appellant contends that the death of the Veteran was as a result of the care received by the West Palm Beach VA medical center (VAMC), as they failed to timely treat the Veteran’s rectal cancer. The Veteran’s cause of death was recorded on the death certificate as rectal carcinoma, retro peritoneal bleeding, and cardiac arrest. Specifically, the appellant contends that during the past two years prior to his death, the Veteran was bleeding from his rectum. He was being treated at West Palm Beach VAMC. He was given suppositories to stop the bleeding. Finally, the appellant contends that in October 2013, he had a colonoscopy, which revealed a cancer tumor the size of a quarter. Nine months later, the Veteran was transferred to a private hospital, JFK Medical Center, where he underwent surgery and a colostomy. However, by then the cancer tumor had become too large. He died shortly afterwards at the JFK Medical Center in Florida. The appellant contends that his death was the result of VA’s negligence, in not removing the Veteran’s cancer tumor earlier, allowing the cancer tumor to grow. During the April 2019 Board hearing, the appellant testified that a doctor from JFK Medical Center told her that the Veteran should have had the surgery earlier. Also, during the hearing, the appellant testified that the Veteran’s bilateral hearing loss also contributed to his death. In a June 2015 VA medical opinion, upon reviewing the evidence of record, to include the statements by the appellant, the VA examiner opined that there is no evidence of VA carelessness, negligence, lack of proper skill, error in judgment, etc. The VA examiner cited to specific medical records in the Veteran’s file. The VA examiner noted that in September 2008, the Veteran had surgery for prostate cancer. In a March 2010 medical note, it was noted that the Veteran had radiation for prostate therapy for prostate cancer five to six months previously. The VA examiner pointed out that in a February 16, 2012 medical note, the Veteran had multiple problems including his coronary artery disease that caused him to be admitted to the hospital to rule out myocardial infarction. Also, it was noted that the Veteran’s radiation proctitis was causing intermittent rectal bleeding and that he was being managed by multiple non-VA specialists. The VA examiner noted that that the Veteran was first seen by a G.I. specialist at West Palm VAMC in April 2013. At that time, in an April 2013 VA medical note, the Veteran was referred to G.I. for evaluation of his rectal bleeding. The VA examiner noted that these records provide further evidence that the Veteran chose to receive care of his rectal bleeding by non-VA medical specialists. The VA examiner explained that medical issue of rectal bleeding was further complicated by the Veteran’s significant coronary artery disease that required stenting and ongoing treatment of Plaxis, a potent blood thinner that prevents stents from clotting. The Veteran was seen for a follow-up of the rectal bleeding by VA gastroenterologist on October 15, 2013. A week later a biopsy was done via colonoscopy of the rectal mass and the pathology report showed that this rectal mass was an adenocarcinoma. Unfortunately, due to necessary delays from the Veteran’s additional major interventions due to his heart valve and carotid artery surgery, the Veteran’s rectal cancer had grown so large as to be inoperative; and therefore, he died as a result of the rectal cancer. The VA examiner noted that the Veteran had multiple major medical problems. The Veteran chose to have non-VA care for the rectal bleeding for what the VA examiner determined to be a full year. However, once he was seen by a VA gastroenterologist, diagnosis of a rectal mass caused by rectal cancer was determined within one week. The VA examiner noted that further delay was attributed to the need to be certain that the Veteran would have the best chance of survival. To not do this evaluation and intervention would have been negligent. In February 2020, the June 2015 VA examiner submitted an addendum. The VA examiner again went through the Veteran’s medical treatment records. The VA examiner again noted that the Veteran’s surgery was delayed because of the tests that needed to be done due to the high operative risk of the surgery. Thus, the VA examiner reaffirmed his previous opinion that it is not likely that the Veteran’s death was the result of VA carelessness, negligence, lack of proper skill, or erroneous judgment. At the onset, the Board notes that the first requirement of § 1151, evidence of an additional disability or death, is satisfied as here there is uncontested evidence of the Veteran’s death. The Board notes that the Veteran’s June 2014 death certificate is part of the record. The second requirement is whether VA “actually caused” the Veteran’s death. Notably, the Veteran was initially diagnosed with rectal cancer by West Palm VAMC in October 2013. Though, merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). However, here, the appellant contends that VA’s delay in treatment of the Veteran’s cancer caused the Veteran’s death. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. In the present case, the Board finds that VA did not cause the Veteran’s death by failing to timely treat the Veteran’s rectal cancer. Specifically, in the June 2015 VA medical opinion and the February 2020 addendum, the VA examiner opined that there was no evidence of VA carelessness, negligence, lack of proper skill, or erroneous judgment. The VA examiner explained the Veteran was seen on October 15, 2013 for his rectal bleeding; and, within a week he was diagnosed with rectal cancer. The VA examiner clarified that prior to the Veteran’s surgery, due to his multiple health conditions, certain tests were required to be performed to ensure a successful outcome on this high-risk surgery. The VA examiner noted that further delay was attributed to the need to conduct additional testing, due to complications from the Veteran’s other major health conditions and with respect to the high risk of this surgery, to be certain that the Veteran would have the best chance of survival. In fact, the VA examiner concluded that to not do this evaluation and intervention would have been negligent. The Board affords great probative value to the June 2015 and February 2020 VA medical opinions, are they are based on sufficient facts and data and rendered by a qualified medical professional. Thus, the Board finds that VA did not cause the Veteran’s death. As here, the Board finds that VA did not fail to timely treat the Veteran’s cancer. Again, the medical evidence shows that within a week of seeing the Veteran for rectal bleeding, he was diagnosed with rectal cancer. The VA examiner explained that necessary tests were required prior to the surgery due to the high risk associated with the surgery, as well as the Veteran’s other major health conditions. In fact, the VA examiner noted to not perform such tests would have been negligent. Thus, the Board finds that the VA medical professionals exercised the degree of skill and care ordinarily required of the medical profession under these circumstances. And lastly, the Board finds that there is no competent evidence to show that the Veteran’s death would have been avoided if earlier treatment was rendered. In sum, based on the above reasons, the Board finds that VA did not “actually cause” the Veteran’s unfortunate death. As the Board has determined that the Veteran’s death was not actually caused by VA, consequently, discussion of the third requirement, proximate causation of the Veteran’s death, is not required. Nevertheless, the Board finds that the Veteran’s death was not proximately caused by VA. The June 2015 and February 2020 medical opinions reflect no evidence of VA carelessness, negligence, lack of proper skill, or erroneous judgment. As discussed in more detail above, the VA examiner opined that although the Veteran’s surgery to remove the rectal cancer was delayed, the reason for the delay was to conduct necessary tests due to the high risk of the surgery and the Veteran’s other health issues. Furthermore, although the Veteran’s death is very unfortunate, it is not based on an event that was reasonably unforeseeable. As the VA examiner explained, the Veteran’s death was based on a known complication of his rectal cancer. The Board acknowledges the statements of the appellant that she believes that the VA medical staff made errors in the care that the Veteran received. However, the Board finds that, as a layperson, she is not competent to offer medical opinion evidence in this instance. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is no evidence that the Appellant has the medical education and training required to make competent clinical assessments as to the treatment of this medical condition, due to the complex testing that is associated with this disorder. As such, the Board does not find the Appellant’s statements probative with regard to establishing entitlement to compensation under 38 U.S.C. § 1151 as that statement requires knowledge of the standards of practice in medicine as well as knowledge regarding the specific conditions which caused the Veteran’s death. The appellant has not established that the Veteran’s death is the result of VA treatment that was the result of an event not reasonably foreseeable or carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. III. Cause of Death under 38 U.S.C. § 1310 Here, during the Board hearing, the appellant testified that she believed that the Veteran’s death was also caused by his bilateral hearing loss. Specifically, the appellant testified that she believes since the Veteran lost his hearing aids and could not hear, that contributed to his death. Although, the appellant also testified that she brought his hearing aids, so it was “okay.” However, to the extent that the appellant is also contending that the Veteran’s service-connected bilateral hearing loss contributed to his death, the Board will address that contention here. Legal Principles and Regulations Under 38 U.S.C. § 1310, a surviving spouse, children, and parents of a qualifying veteran who dies as a result of a service-connected disability will be entitled to receive Dependency and Indemnity Compensation (DIC) compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (a) (1) A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Analysis Here, the Veteran’s death certificate reflects that he died from rectal carcinoma, retroperitoneal bleeding, and cardiac arrest. There were no other significant conditions contributing to death listed on the death certificate. The manner of death was listed as natural. At the time of death, the Veteran was only service connected for bilateral hearing loss. The claims folder does not reflect that the Veteran complained of or received treatment for any of the above conditions while in service or within one year from his military service. Review of the Veteran’s post service VA treatment records do not show that the Veteran’s causes of death are related to his military service. There is no rectal carcinoma, retroperitoneal bleeding, and cardiac arrest in service and no competent credible medical evidence any of these conditions could be related to active service. In fact, the appellant does not contend that these conditions were caused by or related to the Veteran’s active service. Given such, the conditions that caused the Veteran’s death are not related to the Veteran’ service. Also, the Board finds that the Veteran’s service-connected bilateral hearing loss was not the principal cause of death. Again, the death certificate lists the principal causes of death as rectal carcinoma, retroperitoneal bleeding, and cardiac arrest. Lastly, the Board finds that the Veteran’s bilateral hearing loss was not a contributory cause of the Veteran’s death. A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. In a March 2020 VA medical addendum, the VA examiner opined that the Veteran’s service-connected bilateral hearing loss less likely than not contributed substantially or materially to the Veteran’s death. The VA examiner reviewed the Veteran’s VA medical records and did find a note that the Veteran lost his hearing aids, but that the appellant provided a spare. The spare hearing aids were tested and determined to be functioning properly. Significantly, the VA examiner explained that the Veteran had a known serious life-threatening condition related to the complication from his rectal cancer, and more likely than not his death was related to his rectal cancer, not his bilateral hearing loss. Furthermore, the VA examiner noted that there is no literature that states that hearing impairment can cause death. (Continued on the next page)   As the evidence fails to establish that the Veteran had a service-connected disability that was either the principal or a contributory cause of death, or that a disability incurred in or aggravated by active service did contribute substantially or materially to the Veteran’s death, the appellant’s claim for entitlement to service connection for the cause of the Veteran’s death is not warranted. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.